Feaster v. Fagan

McClain, J.

In 1865, one Láwrence Fagan, under whom defendants and intervener claim as heirs and admin *634 istrator, died seised of the real-estate in controversy, leaving a will in which he directed that the residue of all his estate, real, personal, and mixed, after the payment of debts and specific bequests, be sold by his executor or executors, and that the balance of the proceeds after satisfying such debts and bequests be divided equally between his legal heirs, naming them, and he nominated two persons to be his executors. The persons named in the will did not qualify as executors, and thereupon the court appointed the widow “ executor and trustee ” under the will. The widow elected not to take under the will, and had such election made a matter of record. In 1865, the widow, who had in the meantime remarried, executed a warranty deed in the usual form purporting to convey the real estate in question to one James Kain, signing her name to the deed with the addition of the words “ executor for the estate of Lawrence Fagan.” Plaintiff claims title through mesne conveyances from said James Kain. The widow died, in 1903. Since the commencement of this action, A. D. Long has been appointed by the probate court as administrator de bonis non of the estate of Lawrence Fagan, and has intervened in the trial court, asking that any rights and interests of the estate of Lawrence Fagan in the property be protected. The defendants, as heirs of Lawrence Fagan, contest the validity of the title on which plaintiff relies.

1. Estates descendants sale by executor: approval. I. The objections made to the plaintiff’s title as acquired under the conveyance by the widow, as executor, were: That she had no power, as executor, to convey; that her conveyance was never approved by the probate court; that such conveyance purported , ’ . only-to transfer the dower interest which she bad in the premises, which under the law in force at the time ‘of testator’s death was a life estate. By the express provisions of the will, the executor or executors of the testator were to sell the real estate and distribute the proceeds among the heirs, and the power of sale was therefore directly *635 conferred, not only on the persons named to be executors, should they qualify, but also on any' executor or administrator with the will annexed who should by proper action of the court be substituted. The power to sell was not left discretionary,- nor was it in the nature of a personal trust; but its exercise was absolutely essential to the carrying out of the provisions of the will. Therefore the widow, after her appointment as executrix, on the failure of the persons named to qualify as executors, had the power, and it was her duty, to sell and convey the real estate. Ellyson v. Lord, 124 Iowa, 125, 128 ; Schroeder v. Wilcox, 39 Neb. 139 ( 57 N. W. 1031 ); 2 Woerner, Administration, 715, 728; Page, Wills, 830. There was nothing in this will vesting any discretion or personal trust in the executors, and therefore the cases of Hodgin v. Toller, 70 Iowa, 22 , and Boland v. Tiernay, 118 Iowa, 59 , relied upon by appellant, are.not in point. The language employed by testator, “ It is my will that . . . my estate . . . shall be sold by my executor or executors,” left no discretion with the executor, but was ■ an unequivocal command. Shafer v. Tereso, 133 Iowa, 342, 349 . Where the power to sell is conferred upon the executor, approval of the conveyance by the court is not essential to its validity. The executor acts under the power given by the will, and not under the authority of the court. Page, Wills, 832; 2 Woerner, Administration, 717, 718; Iowa Loan & Trust Company v. Holderbaum, 86 Iowa, 1 ; Davis v. Hoover, 112 Ind. 423 ( 14 N. E. 468 ).

2. same: extent of interest conveyed. II.. The claim that the conveyance by'the widow, as executor, to James Kain, is to be considered as her individual conveyance only of the interest which she had in the property, is not- supported by the facts disclosed in the record, nor by the rules of law applicable in such cases. When an executor authorized by .will to make a conveyance has also an individual interest in the property, as devisee or otherwise, the question whether a conveyance by such person is an exercise of the power to *636 convey given in the will, or the exercise only of the right to pass such person’s individual interest, is a question of intent to be determined by consideration of the language used in the instrument and the circumstances under which it was executed and accepted. Funk v. Eggleston, 92 Ill. 515 ( 34 Am. Rep. 136 ); Chase v. Ladd, 155 Mass. 417 ( 29 N. E. 637 ); South v. South, 91 Ind. 221 ( 46 Am. Rep. 591 ); Arlington State Bank v. Paulsen, 57 Neb. 717 ( 78 N. W. 303 ). The widow’s individual interest, was a life estate, but the conveyance was in the form of a regular warranty deed purporting to transfer an unincumbered title to the property described with covenants that the grantor had good right and lawful authority to sell the same, that it was free from incumbrances, and that she would warrant and defend the title against the lawful claims of all persons whomsoever. The language of the instrument plainly indicates an intention to exercise the power given to the executor by the will, for not otherwise could the grantor convey a good title. The consideration, as appears from the evidence, was the full value of the property, and the grantor described herself by words affixed to her name as “ executor of the estate of Lawrence Fagan.” Authorities are cited to the effect that, such words as “ president,” “ secretary,” etc., affixed to the name of the signer of an instrument, are merely descriptio personae, and they do not show the signature to have been made in a representative capacity. But without entering into a discussion of this much-mooted question, it is sufficient to say that it is not here involved. If it can be shown that the intent was to convey under the authority given in the will, then it is wholly immaterial whether the instrument in itself purports to be in execution of such power or a transfer of the individual interest of the graptor, and the words added to the signature may certainly be' considered in arriving at the intention in pursuance of which the instrument was executed and accepted. -

We reach the conclusion therefore that the conveyance *637 by tbe widow to James Ilain passed tbe fee title held by tbe testator at the time of his death, and not simply the widow’s life estate, and that by intermediate conveyances the fee title has become vested in the plaintiff. The heirs of Lawrence Fagan have therefore no interest in the property by descent, for it has been fully and completely disposed of as provided in the will. This conclusion renders it unnecessary to discuss the question argued by counsel as to plaintiff’s right by adverse possession under color of title. It also disposes of the claim of intervener, for, if the provisions of the will have been fully carried out by the excution of the power of sale given to the executor, then the estate of Lawrence Fagan has no further interest in the property nor in the proceeds thereof.

The judgment is therefore affirmed.